It's official: Final report from Biden's court-packing commission a dud

AP Photo/Evan Vucci

Progressives demanded that Joe Biden pack the Supreme Court. Instead, his ad hoc commission has issued a weak recommendation to consider term limits — which will end up doing nothing in regard to the issue driving this extreme demand. With the Supreme Court considering a reversal on Roe, Joe Biden’s punt will give him cover to run. But how long can he hide?

A bipartisan panel of legal scholars examining possible changes to the Supreme Court voted unanimously Tuesday to submit to President Biden its final report, which describes public support for imposing term limits but “profound disagreement” about adding justices. …

Among the proposals the commission considered are term limits for justices, who currently have life tenure and often serve for decades. Until the late 1960s, the average term was 15 years, but has now increased to about 26 years. Justice Clarence Thomas, the longest serving justice, joined the bench 30 years ago.

Proposals include staggered 18-year terms that would make appointments more predictable by ensuring that all presidents have the opportunity to nominate two justices in each term they serve. The report, which takes no position on the proposal, cites testimony from a group of Supreme Court practitioners who concluded that an 18-year nonrenewable term “warrants serious consideration.”

That’s not a bad plan, actually, especially if it applied to the entire federal judiciary. Can Congress do that, though? The commission isn’t sure either, but they’re convinced that Congress shouldn’t do it by statute, recommending a constitutional amendment instead. That process would take years, first for the necessary two-thirds vote in each chamber of Congress and then for 38 states to ratify it. A statute would be more efficient, but it would also create an even bigger political problem:

Should Congress seek to impose term limits, the commission suggests a constitutional amendment would be the preferred approach rather than a change in statute. The report cautions that any change driven by lawmakers could face a constitutional challenge to be decided by the Supreme Court, raising questions about whether the justices could even review such a case.

“No matter which way the Court came out on the question, these Commissioners worry that the Court’s legitimacy, or perceptions of its legitimacy, would be undermined,” the report states.

It may not be that much of a political problem. The Constitution makes the lifetime appointment of judges all but explicit, and statutes cannot override the Constitution. Eventually it would require an amendment. If such a process resulted in a more predictable and even-handed appointment process, that might even be amenable. However, that assumes that the White House would change hands and parties every four years. One 12-year run with a single party, such as the Reagan/Bush run, would still produce an impact on the judiciary that would still get progressives amped up for court-packing.

At any rate, progressives aren’t letting Biden get away with the punt:

Brian Fallon, the executive director of Demand Justice, a liberal group that supports expanding the number of justices, portrayed the commission as a waste of time.

“The best thing about this commission is that it’s finally over and the Biden administration will be forced to now confront the question of what to do about this partisan Supreme Court,” he said.

Have fun storming this particular castle. Progressives don’t have the votes in Congress to force Biden to move, and he’s already torched his presidency by following their legislative lead on Build Back Better. They’d be lucky to get 40 votes in this Senate for court-packing especially after this report has gone public, and they’d need 60. In the meantime, they will fulminate over the courts’ “legitimacy,” a quality directly measured by the number of wins progressives get in pushing their agenda in court rather than in legislatures.

Unless, of course, Joe Biden suddenly decides he needs to pander even more to his extreme Left. Biden got exactly what he wanted out of this commission — political cover to ignore the court-packers. Let’s see if he’s smart enough to take advantage of it.